What's In A Name?

About half of the United States have capitated limits on the duration that an injured worker can get temporary disability indemnity benefits.

The trend started about 20 years ago, when TTD duration was unlimited, and so was the open status of claims.

It is common knowledge - the longer a claim stays open the more expensive it becomes, and the less likely the injured returns to work.

In response, states started implementing caps on TTD duration. This, of course, was challenged in the courts and universally upheld as a legislative prerogative.

Since then, 23 states have capitated TTD status. The caps range from 104 weeks in California and Florida, and 105 weeks in Texas, to as many as 700 weeks in New Mexico.

Another 20 states, including Illinois and New York, allow an injured worker to collect benefits for the duration of temporary disability, according to the Workers' Compensation Research Institute.

In Kentucky, workers can collect TD for the duration of disability or until they qualify for Social Security. Iowa allows injured workers to collect TD benefits for the rest of their lives.

Washington currently has no cap on TTD, but a bill proposed by Rep. Matt Manweller, R-Ellensburg, House Bill 2337, would allow workers to collect temporary disability benefits for as long as total disability continues, or 60 months, whichever is less.

At the same time, Manweller filed House Bill 2338, which would end TD benefits when a worker reaches maximum medical improvement. The bill would also authorize a reduction in TD benefits if the worker has not reached maximum improvement, but has recovered some earning capacity.

A worker not yet at MMI who has partial earning capacity would be entitled to 80% of the actual difference between present wages and earnings at the time of the injury, provided wages and benefits don't exceed 150% of the state's average monthly wage or 100% of TD benefits.

Washington's Joint Legislative Audit Review Committee published a comprehensive report on costs in the state's workers' compensation system, pointing to the lengthy TD duration as a key cost driver.

According to the report, the average TD duration in Washington state was 291 days in 2012, compared to an average of 140 days in 46 other states, as estimated by the National Council on Compensation Insurance. Average duration of TD benefits in Washington has exceeded the national average each year from 2001 to 2012, according to the committee's report.
The committee blames that duration on the fungible standard of "employable."

"This is different from the majority of states that terminate temporary disability benefits once maximum medical improvement is attained, regardless of 'full' employability; if there is 'zero' employability, then permanent and total disability benefits would be warranted," the report says. "This difference, at least in large measure, helps explain the longer average time-loss durations in Washington."

In general I'm not in favor of drawing artificial lines in the sand. Each case, each person, each injury, is different. What works in one situation may not apply to a similar, but different situation.

But temporary is temporary - it is not of unlimited duration. At some point there has to be a declaration that, while someone may continue to improve throughout their lives, a condition is no longer "temporary" - we all have to move on.

What's interesting to me is that Washington's JLARC seems to think that the "employability" standard is more subjective than the Maximum Medical Improvement standard used by other states as a determinant for ending TTD status.

"It is a matter of some disagreement between employers and labor advocates in Washington state as to whether the way 'employability' is assessed in Washington is fair and reasonable," they say about the employability standard. "Some feel that identifying that the person can get a common job making minimum wage (e.g. fast food, retail, delivery, customer service) satisfies the test. Others feel that employability must take into consideration the personal limitations of the worker that may have pre-existed the injury, e.g. prison record, substance abuse, extensive tattoos/body piercing."

But when it comes to MMI, "It seems logical that when most injured workers reach maximum medical improvement, often also called 'fixed and stable,' they are no longer temporarily totally disabled, since additional treatment will not help them recover any more," implying that MMI is a more objective standard.

It isn't. Both rely on an "expert's" opinion. While an opinion may be based on fact, it is still an opinion: "a belief or judgment that rests on grounds insufficient to produce complete certainty."

The only way to "produce complete certainty" is to make something certain - and a time limit does that if "temporary" is to meet dictionary standards.

"What's in a name? That which we call a rose
By any other name would smell as sweet."

Romeo and Juliet (II, ii, 1-2)

What's in "temporary"? "Lasting, existing, serving, or effective for a time only." Employability, MMI, or 60 months...

Reasonably Just Substitute

Jacob White was a night watchman for the New York Central & Hudson River Railroad Company. White's job was to guard the tools and materials intended to be used in the construction of a new station and new tracks upon a line of interstate railroad.

He died on the job. The courts found that his job did not involve interstate commerce and thus his death was covered by New York's workers' compensation system (as opposed to the Federal Employers' Liability Act) and awarded benefits to his widow accordingly.

A constitutional challenge to New York's workers' compensation law was raised by both the railroad and the widow:

(a) that the employer's property is taken without due process of law, because he is subjected to a liability for compensation without regard to any neglect or default on his part or on the part of any other person for whom he is responsible, and in spite of the fact that the injury may be solely attributable to the fault of the employee;

(b) that the employee's rights are interfered with in that he is prevented from having compensation for injuries arising from the employer's fault commensurate with the damages actually sustained, and is limited to the measure of compensation prescribed by the act, and;

(c) that both employer and employee are deprived of their liberty to acquire property by being prevented from making such agreement as they choose respecting the terms of the employment.

And nearly a hundred years ago the United States Supreme Court found that compulsory workers' compensation passed muster.

The Court's dialogue is eerily prescient of today's environment:

"In support of the legislation, it is said that the whole common law doctrine of employer's liability for negligence, with its defenses of contributory negligence, fellow servant's negligence, and assumption of risk, is based upon fictions, and is inapplicable to modern conditions of employment; that, in the highly organized and hazardous industries of the present day, the causes of accident are often so obscure and complex that in a material proportion of cases it is impossible by any method correctly to ascertain the facts necessary to form an accurate judgment, and in a still larger proportion, the expense and delay required for such ascertainment amount in effect to a defeat of justice; that, under the present system, the injured workman is left to bear the greater part of industrial accident loss, which, because of his limited income, he is unable to sustain, so that he and those dependent upon him are overcome by poverty and frequently become a burden upon public or private charity, and that litigation is unduly costly and tedious, encouraging corrupt practices and arousing antagonisms between employers and employees." [emphasis added.]

A standard was espoused by the court - a compulsory workers' compensation system must be a "reasonably just substitute" for common law tort rights:

"The statute under consideration sets aside one body of rules only to establish another system in its place. If the employee is no longer able to recover as much as before in case of being injured through the employer's negligence, he is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty and expense of establishing negligence or proving the amount of the damages. Instead of assuming the entire consequences of all ordinary risks of the occupation, he assumes the consequences, in excess of the scheduled compensation, of risks ordinary and extraordinary. On the other hand, if the employer is left without defense respecting the question of fault, he at the same time is assured that the recovery is limited, and that it goes directly to the relief of the designated beneficiary. And just as the employee's assumption of ordinary risks at common law presumably was taken into account in fixing the rate of wages, so the fixed responsibility of the employer, and the modified assumption of risk by the employee under the new system, presumably will be reflected in the wage scale. The act evidently is intended as a just settlement of a difficult problem, affecting one of the most important of social relations, and it is to be judged in its entirety." [emphasis added.]

But the Court warns:

"This, of course, is not to say that any scale of compensation, however insignificant, on the one hand, or onerous, on the other, would be supportable. In this case, no criticism is made on the ground that the compensation prescribed by the statute in question is unreasonable in amount, either in general or in the particular case. Any question of that kind may be met when it arises."

One hundred years ago, and the intellect, and great wisdom of justices White, Van Devanter, Holmes, McReynolds, Brandeis, Day, Clark, Pitney and McKenna saw that there had to be a balance, that in order for both the employer and the employee to be forced into a structured program for work injuries that each had to give up rights in order to achieve fairness.

I had opined in the past that workers' compensation has nothing to do with fairness or justice, and that such determinations are in the hands of the legislatures that pass the laws creating and maintaining work comp.

I still maintain that position, so long as the system created or maintained meets the standards espoused in 1917:

1) There must be certainty;
2) It must be speedy;
3) There must not be any protracted disputes about fault or damages;
4) The employer's obligation must be limited and fixed;
5) The entire program must be viewed as a whole; i.e. no one facet takes precedence over any other.

There are constitutional challenges going on in state courts around the nation. Florida, Oklahoma, California ... each of the challenges to the state programs focus on singular, specific areas of workers' compensation law.

Are things any different now, in 2015, than they were when White died in 1914?

-"the expense and delay required for such ascertainment [of AOE/COE or disability] amount in effect to a defeat of justice"-
-"the injured workman is left to bear the greater part of industrial accident loss, which, because of his limited income, he is unable to sustain"-
-"frequently become a burden upon public or private charity"-
-"and that litigation is unduly costly and tedious, encouraging corrupt practices and arousing antagonisms between employers and employees"-

A common topic of discussion in workers' compensation circles these days is whether the federal government will weigh in and mandate certain standards, or even take over all of workers' compensation.

I don't think so. There is neither the political will, interest or fortitude for Congress to do so.

But the right case to the US Supreme Court, asking it to revisit the standards espoused 100 years ago could change everything.

Are modern workers' compensation systems (or an employer's opt out program) a "reasonably just substitute"? [Page 243 U. S. 201] There's good argument that we have strayed from that standard, and it will be both an employer and it's injured worker who will make that challenge together when the employer feels it is paying too much for too little, and the employee feels he is getting too little after suffering too much.

Not Our Obituary

John Coll's bronze of Brendan Behan

The negative image of workers' compensation and it's opt-out partner painted by the general media in the past couple of years is catching the eyes of some federal lawmakers.

Though opinion as to whether there is political will for the federal government to wallow into such a sacred state issue is mottled.

10 Democratic lawmakers sent a letter Tuesday to U.S. Labor Secretary Thomas Perez asking the Department of Labor to report on how it will reinstitute oversight of state workers’ compensation programs, what areas it intends to address and whether added authorities are needed to protect the interests of injured workers and taxpayers.

The letter was signed by presidential candidate Sen. Bernie Sanders, Senators Sherrod Brown, Patty Murray, Al Franken, Ron Wyden and U.S. Reps. Frederica Wilson, Chris Van Hollen, Bobby Scott, Sander Levin and Xavier Becerra.

DOL spokeswoman Laura McGinnis said the department is reviewing the letter and looks forward to working with stakeholders on solutions.

“We share their concerns,” McGinnis said in an email to WorkCompCentral. “Every year injured workers and their families are bearing more and more of the cost of workplace injuries and illnesses. Many states have passed workers' comp laws that reduce benefits or make it harder for injured workers to qualify for benefits.”

Back in 1972, during the Nixon Administration, the National Commission on State Workmen’s Compensation Laws was formed and made 84 recommendations for improving states’ workers’ compensation programs — including 19 recommendations it deemed essential.

Federal oversight was never instituted, but the states woke up, and a wave of benefit increases for injured workers progressed throughout the nation in the seventies and eighties.

Will that happen today?

Some don't think there's the political will, particularly as we head into an election year.

Others think that looming cash shortages in the Social Security and Medicare programs will incite some action, even feigned action, that will put the threat of Big Daddy into the states.

One thing is for sure, the relatively recent trend of negative general media reports about workers' compensation has heightened awareness of workers' compensation, and I think this is a good thing.

The vast majority of people, whether they're small business owners, big business executives, blue collar or white collar workers, have absolutely no understanding of work comp, and at least the media is providing some education to them about the system and our industry.

We industry insiders might not like the conversations that are being carried on, and we might take offense at some of the mud-slinging and negative anecdotes to support the stories, but so what? What do you really care?

These articles are providing workers' compensation with some much needed attention.

Workers' compensation and its off-shoots are commendable public service industries. We don't do everything great all of the time, but our jobs are to apply the law as evenly and fairly as we can to instances of work injury within the budgets provided, and most of the time that job is done admirably albeit without much recognition (which is why Comp Laude was created).

People make money off the system - of course they do; nobody works for free.

People scam the system - of course they do; a subset of humans will always seek an unfair advantage.

Some discount surveys of quality, others cite damning statistics.

And some point to quality outcomes, good vendors, people that overcome huge obstacles and get repositioned in life, eventually carrying on.

Media attention is good. That some federal lawmakers have taken notice is good. The conversations are spilling outside the borders of our industry and that is good.

Don't take offense that some might like to see a federal review of state work comp or that there might be some heavy handed federal position taken. I don't really see that happening any time soon. The feds can't even control their own work comp systems...

But if reviews and discussions lead to better balance, more efficiency, greater understanding, then we're the beneficiaries. No other industry has people with the skills, knowledge and talent to navigate the quixotic mix of injury, disability, medical care and budgetary constriction as workers' compensation.

We're given the rules and in the vast majority of cases those of us in the industry execute that mission on a daily basis, go home, and return the next day to do the same, serving millions of people every year in the process with nary any recognition or commendation.

So bully for the feds if they want to take a look as a result of media pressure. And bully to us that we're getting some attention.

Irish writer Brendan Behan said, "There is no such thing as bad publicity except your own obituary."

I don't think we'll be reading our own obituary.

Washington Defines Compromise

Washington is one of the few completely state run workers' compensation systems in the country - from setting rates, collecting premiums and administrating claims; everything is done by the state.

One of the basic tenets of the Washington system for a long time was that there were no lump sum settlements allowed. Most state systems allow settlement of claims via some full release mechanism.

In 2011 reform legislation allowed injured workers 55 and older to enter structured settlements, which the Department of Labor & Industries through its Board of Industrial Insurance Appeals would oversee to make sure that such settlements were adequate.

Next year the age limitation decreases to 50.

The Washington State Flag

Earlier this month the Washington state Court of Appeals ruled in BIIA v. South Kitsap School District – commonly called the Zimmerman case - that this provision applied only to claimants not represented by attorneys, and that the Board did not have jurisdiction over claims where an attorney represented the injured worker.

BIIA has approved just 10% of settlement agreements it has reviewed, according to officials with the state Department of Labor and Industries. Because fewer settlements than expected are being approved, L&I has reduced projected savings from the settlement provision to $140 million between fiscal years 2012 and 2015 from $545 million.

There are arguments for and against Washington's maternalistic overview of work injury settlements.

Those in favor of liberalizing availability of lump sum settlements point to system savings, arguing that being able to close claims releases cash that can go towards relieving some of the burden on employers.

Those against lump sum settlements say that they allow employers to take advantage of injured workers and their families at times of increased vulnerability.

Recently the Seattle Times editorial board said the Zimmerman case removes one obstacle to an effective program and that lawmakers should further reform the state's system to remove other prohibitions against lump-sum payments and settling medical claims.

“Potential for huge savings remains if age restrictions are eliminated and lump sums are permitted,” according to the editorial board. “One state estimate put potential savings at $1.2 billion over the first two years.”

The Washington State Labor Council said in opposition that the Times has always been against workers' compensation and that even when the system was created in 1911 the paper opined that it places a burden on all industries in the state that will put many out of business and prevent new businesses from entering the state.

Obviously that prognostication wasn't accurate.

I can't say whether the Labor Council's argument against lump sum settlements - that such settlements will increase employer gaming by taking advantage of vulnerable people - is accurate either.

When we look at statistics from states where lump sum settlements are allowed for unrepresented injured workers it is clear that they get less money than if they had attorneys; but most of these settlements are required to go through some administrative review process before they are approved, so there must be some meritorious adequacy to these agreements.

Ergo, I also believe there is some merit to the Times' argument that there could be significant savings if the settlement restrictions were liberalized.

Really it all comes down to a matter of culture. The Washington State culture seems, to me, to favor a more maternalistic participation of state in pretty much everything, not just workers' compensation.

How much the population actually understands workers' compensation and its financial underpinnings is another matter, but that's not the point.

According to the Labor Council, every county in the state in 2010 voted against privatization of Washington's work comp system, and that vote suggests that the people of the state don't trust the insurance industry or business when it comes to the population's health and welfare.

Last December L&I announced that premiums will increase for the first time in three years with a newly adopted 2.7% rate increase for 2014.

The department said the 2011 reforms reduced its costs, but it needs the increase primarily to rebuild a surplus account that was depleted in recent years because rates have not been in-line with the agency’s operational costs.

Washington also has a unique system in that workers pay a portion of comp premiums. As part of the premium hike, L&I increased the workers’ contributions by 1.7 cents per hour worked, accounting for about 25% of the 2014 premium increase, according to the department.

In addition, while wages increased in the state by an average of 3.4% last year, L&I did not see any additional revenue because premiums are based on hours worked and not payroll.

The department projected the 2014 rate increase would bring in about $55 million in additional premiums.

Employers point to this rate increase as demonstrative that the 2011 reform did not go far enough to put a check on costs.

And apparently employees, who participate in financing the system, are content with system costs as their representative voices have opposed any changes.

Seems to me that the state has it just about right - no one seems truly happy, and that's the definition of compromise that was taught me in law school.

Intentionally Injuring or Causing Injury

In general most states allow civil actions against an employer outside of the work comp system if the employer intentionally causes an injury.

There's a fine line between intentionally performing an act that may be injurious and intentionally causing the injury.

As reported in WorkCompCentral this morning, the Washington State Court of Appeals ruled that a state troop who participated in taser gun training, which required the trooper to himself be Tasered, may sue the employer outside of work comp for his injuries.

Michael S. Michelbrink Jr. underwent Taser training in March 1999. It was mandatory for troopers, as part of the State Patrol's training program, to be shot with the Taser, presumably to experience the effects of the device.

And while Michelbrink experienced the expected instant temporary pain, discomfort, trouble breathing and incapacitation, he also underwent involuntary muscle contractions from the powerful electric shock that caused serious injuries to his spine.

The Washington State Patrol accepted Michelbrink's fractured vertebrae and slipped disc as compensable injuries. Michelbrink missed almost a year of work before returning to duty, but his permanent partial impairment from his back injury has restricted him to a desk job.

But Michelbrink argues that he is entitled to more because the act of shooting him was intentional.

Like most states, the Washington Workers' Compensation Act immunizes employers from employee lawsuits for injuries in the course of their employment. But the immunity does not apply if an injury "results to a worker from the deliberate intention of his or her employer to produce such injury."

The Washington Supreme Court in the past has said it requires an employer to have actual knowledge that an injury was certain to occur because of its conduct and willfully disregard that knowledge.

The State Patrol sought summary judgment against Michelbrink's suit contending that while it was aware that Tasers posed a risk of injury to its officers, since it had not been certain that the Taser exposure was sure to cause the serious injuries that Michelbrink suffered, it was entitled to summary judgment.

For the less legally erudite, summary judgment in a civil suit is a procedural remedy where the court agrees that there is "no triable issue of fact." In other words, that no ultimate conclusion of fact is subject to disagreement.

And in this case, I can see a triable issue of fact: whether or not the State Patrol had any knowledge that Michelbrink COULD have the injuries he sustained as a result of Taser exposure.

That's how the trial court saw it, and last week the Court of Appeals agreed.

"The Act's exception to employer immunity contains no language making a civil action for excess damages contingent on the severity of the initial injury that an employer deliberately causes in disregard of its knowledge that its action will always produce this 'certain injury," the Court opined.

"Taken in the light most favorable to Michelbrink, as we must on summary judgment, the record shows that (1) WSP required Taser training for troopers opting to use Tasers on the job; (2) WSP knew at a minimum that the Taser barbs would wound and deliver an electric shock on contact with a trooper's back; and (3) despite this knowledge of certain injury, WSP shot troopers with Tasers during training, which it required of all troopers using Tasers in the course of performing their duties," the Court wrote.

Thus, Michelbrink had established a material issue about whether the State Patrol deliberately intended to injure him by providing evidence tending to show it had knowledge that the Taser barbs were certain to cause injury.

The practice of Tasering officers has been controversial. In 2011 the Mississippi Public Entity Workers' Compensation Trust warned against the practice.

But last January, the Montana Supreme Court ruled that a prison guard, who was a member of the prison's elite special response team, could not sue his employer in tort for his Taser-induced spinal injuries.

And the Wyoming Supreme Court last August ruled that a police officer who broke his hand during a Taser training exercise wasn't entitled to workers' compensation benefits for his respiratory problems after his injury.

The Michelbrink case has been remanded to the trial level for further proceedings - the case is not over yet by a long shot.

The case is Michelbrink v. State of Washington, No. 44035-1-II. The WorkCompCentral story contains links to the party's briefs and oral arguments.

I Don't Remember

We know that work comp generally is liberally construed in favor of the claimant. The barriers to proving industrial causation and thus liability are very low.

But in the least the claimant needs to remember some details that would implicate work as the origin of claimed injuries.

That's hard to do when one has a black out, and unfortunately in this Washington case the injuries were significant.

Rudolph Knight admitted he had been drinking heavily in the hours before paramedics pulled him from the water, and he said he had no recollection of what had happened to him.

Knight worked as a catastrophic claims adjuster for State Farm, based in Seattle. State Farm sent him to Galveston, Texas, in 2008 after Hurricane Ike destroyed the area.

Knight spent two months in Texas, staying in a hotel outside of Houston and using a company van to get around. He was able to see his family for the Thanksgiving weekend, and then returned to Texas on Monday, Dec. 1, 2008.

The next day, Dec. 2, Knight was not scheduled to work, but he decided to drive 30 miles from his hotel to Galveston Island to survey Ike's devastation.

He later explained that he had wanted to take another look at the damage from the storm to get "back into the frame of mind of dealing with that specific situation."

While Knight was driving back to his hotel, he noticed some men riding dune buggies. He pulled onto the beach to watch and spoke to his wife on his cell phone at around 1 p.m.

At 5:30 p.m., paramedics responded to a 911 call and found Knight lying on his back along the shore, mumbling "help me."

The lead paramedic, Craig Wunstel, reported that Knight had some small lacerations and bruising. Wunstel said he asked Knight if he had been drinking or using drugs, and Knight admitted he "had a lot of alcohol" earlier.

Knight also allegedly told Wunstel that the last thing he remembered was getting tired and passing out on the beach.

Police Officer Ernesto Garcia also responded to the scene. He reported having noticed that Knight smelled of alcohol.

Dr. Blake Chamberlain treated Knight at the local hospital emergency room. Chamberlain testified that Knight smelled of alcohol and that Knight admitted having drunk "a lot" of alcohol.

Knight also said he remembered "riding in (the) dunes," but he did not remember what type of vehicle he had been riding on, according to the doctor's testimony.

Based upon Knight's actions, slurred speech, sleepiness and the smell of his breath, Chamberlain's initial diagnosis was alcohol intoxication.

Chamberlain did not report noticing any large bruises or signs of apparent trauma, but he ordered two computed tomography scans of Knight's brain.

The scans showed a subarachnoid hemorrhage.

Knight was then transferred to Methodist Hospital because it was better equipped to handle his brain injury.

Testing at Methodist Hospital indicated that Knight's subarachnoid hemorrhage was likely caused by a brain injury and not an aneurysm. Bruising on Knight's face further indicated that he suffered a "contrecoup injury," meaning there was some kind of blunt trauma to his head that caused his brain to knock against the other side of his skull, causing the hemorrhage.

Chamberlain testified this type of injury could be sustained by falling on sand and was not consistent with an injury caused by a blow to the head with a fist, but the doctor said he had no way of knowing for sure how Knight was hurt.

While Knight was at Methodist Hospital, his cognitive condition worsened. He had lost the ability to express himself clearly and he developed a wandering eye.

Knight filed an application for workers' compensation benefits, but the Department of Labor & Industry denied his claim. He then unsuccessfully sought review by the Board of Industrial Insurance Appeals and the King County Superior Court.

Knight was deemed a traveling employee by the court under Washington law, which would make him in the course of employment continuously during his entire trip, unless he makes a "distinct departure on a personal errand."

L&I argued that Knight had clearly abandoned his employment when he drank to the point of intoxication. The court agreed and granted summary judgment in favor of L&I.

This was held up on appeal.

Assuming that Knight was within the course of his employment when he stopped to watch the dune buggy riders at around 1 p.m. on Dec. 2, 2008, the appellate court said that there was substantial evidence that at sometime between 1 p.m. and 5:30 p.m., Knight drank to the point of intoxication and suffered his head injury.

The court noted there was "no direct or circumstantial evidence as to which event occurred first," and based on this lack of evidence, it was impossible to discern whether Knight was injured before or after he became intoxicated. "Therefore, the outcome of this case depends upon who had the burden of proving whether or not Knight was on a distinct departure from his employment due to his intoxication at the time of his injury."

L&I made the motion for summary judgment and raised sufficient evidence to demonstrate no triable issue of fact that would implicate industrial causation. The burden then would shift to Knight to refute that conclusion by presenting some triable issues.

But Knight couldn't do that because he blacked out - he could not raise any argument that would refute L&I's interpretation of the facts.

Some states have a presumption of injury in favor of traveling employees, but Washington doesn't.

The arguments from observers interviewed by WorkCompCentral on this story lamented the lack of a presumption, and some argued that intoxication to the point of blacking out is clearly a deviation from employment.

But the fact is that it is unknown if the brain injury happened before or after (or during) extreme intoxication. If Knight can't remember and there are no other witnesses, then the order of events can't be established. In Washington this is fatal.

The case is Knight v. Department of Labor & Industries, No. 69514-2-1.

2009 - Bad Year to Compare Spine Surgery

A study recently published in the professional journal, Spine, found the rate of lumbar fusions was 47% higher in California than Washington.

Of course the cost is higher per surgery by about 23%, but that's not disconcerting by itself.

What does cause some deliberation is that Californian's undergo fusion for “controversial indications” at a higher rate than similarly situated patients in Washington with 28% of fusions in California for complaints of nonspecific back pain, compared to 21% of the fusions in Washington. About 37% of the procedures performed in California were on herniated discs, compared to 21% in Washington.

“How Do Coverage Policies Influence Practice Patterns, Safety and Cost of Initial Lumbar Fusion Surgery? A Population-Based Comparison of Workers' Compensation Systems,” examined 4,628 patients who underwent an inpatient lumbar fusion for degenerative disease in 2008 and 2009.

Both states use "evidence based medicine" guidelines to regulate medical procedures.

I guess Washington has better evidence? Or are there incentives that existed creating a path to such disparity?

While the study compares and contrasts different procedures and outcomes in the two states, what is most shocking is that injured workers receiving spinal fusions in California were 2.28 times more likely to need a second surgery, 2.64 times more likely to have “wound problems” and 2.49 times more likely to have device complications, as compared to those in Washington.

These are not small margins.

In the meantime, yesterday the California Division of Workers' Compensation held its first meeting on the well publicized "problem" of utilization review and independent medical review volume in Van Nuys yesterday.

Much like the volume of IMR requests, DWC didn't anticipate the volume of people interested in the topic. The auditorium of the Van Nuys State Office Building was filled past capacity, with roughly 150 people attempting to crowd into a room with a maximum occupancy of 117.

There were a handful of injured workers and doctors present and about a dozen attorneys. Most of the audience identified themselves as being claims adjusters or employer representatives.

The meeting, which many thought would be a complaint session, or at least an open forum for discussing UR/IMR backlog and volume, was more about DWC telling everyone that things are working, and for those things that aren't working, they'll be working shortly.

But DWC Medical Director, Dr. Rupali Das, told the audience that the agency next month hopes to release an update to the medical treatment utilization schedule.

The MTUS hasn't been updated since 2009. Other developments have occurred in this time frame that would affect any of the statistics behind the Spine study.

Dr. Gary Franklin, Washington Department of Labor and Industries Medical Director, and one of the authors of the Spine study, said broader lumbar fusion coverage policies such as those in effect in California in 2008 and 2009 were associated with greater use of lumbar fusions, use of more invasive procedures, more follow-up operations, higher rates of complications and greater inpatient costs.

The numbers examined by the Spine study were before attention was brought upon Tri-City Regional Medical Center in Hawaiian Gardens, Pacific Hospital of Long Beach, Michael Drobot, and Paul Randall by the U.S. attorney's office and the Wall Street Journal alleging excessive and unnecessary surgeries to take advantage of the hardware pass-through provisions of the Labor Code.

The Journal reported that Pacific Hospital of Long Beach, owned by Michael Drobot, performed 5,138 fusions between 2001 and 2010, billing workers' compensation carriers $533 million for the procedures. Drobot and Randall worked together from 1998 until 2008, when the two parted ways because of a business dispute and Randall went to work for Tri-City.

I don't think the numbers are any coincidence. My suspicion is that Washington doesn't have any better evidence. The state likely just didn't have as many profiteering incentives.

Friend, fellow blogger and sometime co-panelist at conferences Joe Paduda told WorkCompCentral that "people in California are saying UR and IMR are denying care unfairly to workers. What the Washington research indicates is that, in fact, the lumbar fusions in California are more expensive, there are far too many and they are far more damaging to the claimants than the similar claimant population in Washington.”

I don't think the Washington research says that at all. I suspect that if the Washington study cohorts were geographically isolated we would see significant concentration in the Los Angeles area, and particularly in Long Beach and Hawaiian Gardens...

Drug Formularies Good For Comp

A formulary is coming to your workers' compensation system soon.

Formularies are lists of preferred generic and brand-name drugs.

Washington and Texas use formularies to control drug use and curb inappropriate treatment practices. The formularies also reduce drug contra-indications and play a major role in lowering prescription drug costs in these states.

Prescription drug formularies will become a part of the American College of Occupational and Environmental Medicine's Practice Guidelines.

The Reed Group, publisher of the ACOEM guidelines, released the "beta," or preliminary version of its new formulary. ACOEM uses the Food and Drug Administration's National Drug Code numbering and drug-listing data, and incorporates the ACOEM Practice Guidelines' 600-plus medication-related recommendations, according to the organization.

Mark Pew, senior vice president of product development for medical management firm Prium, told WorkCompCentral that Texas' success with its closed formulary, which is Work Loss Data Institute's product, is prompting other states to begin looking at adopting forumularies.

Simplicity and clarity are two of the reasons for the success of the Work Loss Data Institute's Texas formulary, Pew said. He noted that the Work Loss Data Institute classifies drugs into categories of "Y" or "N" to indicate whether it is recommended.

"It made it very easy for pharmacists, for doctors, for utilization-review companies like us, for pharmacy benefit managers, to know what was supposed to happen and to know how to implement it because it was relatively binary," he said. "If it is 'N', Texas said you have to preauthorize it. If it was 'Y', Texas said you do not have to preauthorize it." Ergo, physicians not wanting the extra paperwork and hassle of arguing against the standard go with the standard alleviating a big chunk of treatment dispute.

While this is a competitive move for the Reed Group and ACOEM, since the the Work Loss Data Institute's Official Disability Guidelines already have a formulary that is linked directly to the ODG Treatment Guidelines, the timing could not have been more prescient because I believe the biggest workers' compensation state, California, is on the cusp of needing, reviewing, and potentially adopting, formularies to get some control over its current utilization review and Independent Medical Review issues.

I've been advised that denied requests for prescription drugs are a big driver in UR appeals to IMR.

According to the California Division of Workers' Compensation about 80% of IMR decisions that have been issued upheld the UR decision denying treatment. But one area of utilization control that is not accounted for in the current Medical Treatment Utilization Schedule, which has its origins in ACOEM, is prescription drugs. Because these are not in a formulary there is room for debate and appeal on whether or not such a treatment request will, or will not, be approved. Obviously this is going to drive UR to IMR volume.

A closed drug formulary, if as easy to use as Pew says the Texas system is to use, would go a long way towards alleviating treatment disputes because physicians, their patients and claims administrators would know well in advance what is going to fly and what isn't.

The test, of course, is whether California politics would permit adoption of a closed formulary. Opponents will argue that adopting a formulary inhibits medical treatment because then drugs can not be prescribed for off label use that may be beneficial to treatment.

Off label means that a drug has not been approved for treatment of a particular condition. Physicians are typically free to prescribe any drug for whatever condition they deem necessary - this practice has come under fire as the nation's opioid addiction reaches a crisis stage and some physicians face discipline for over-prescribing the drugs.

But workers' compensation is not about experimenting with medicine. The treatment guaranteed in workers' compensation is that which is reasonable and necessary to cure or relieve. The key is "reasonable" and there is a very good argument that off label is not reasonable since such usage does not have the scrutiny and blessing of the Food and Drug Administration's rigorous approval process.

Stay tuned - the debate on drug formularies, and particularly in California, is going to heat up and likely will be a top workers' compensation topic in the state in 2014.

Happy New Year.

Comp Drives Business Out?! PUHLEEZE

Two things in this morning's WorkCompCentral news that, in my opinion, demonstrate what a political scapegoat of a red-herring workers' compensation is to legislators who pander to special interests, be it business, labor, medicine or whom-ever.

It was disclosed that in Texas, where workers' compensation is optional, the Workers' Defense Project pushed for Apple to require the builders of its new $300 million facility to obtain workers' compensation coverage as part of the group's general stance that construction workers tend to fare better under Texas' workers' compensation system than under nonsubscriber plans.

Emily Timm, policy director for the group, told WorkCompCentral that the project has successfully negotiated with other employers to obtain workers' compensation coverage for their construction projects, too.

"Most of the construction industry in Texas does not have regular health insurance," Timm said. "Without workers' comp and without health insurance, you have absolutely no insurance provider to pay for medical bills, which means the family ends up with them or - what is very common - is that the hospitals that provide emergency care end up with large, uncompensated care costs."

Apparently Apple does not see the cost of workers' compensation as being an impediment to its expansion into Texas. Maybe that's because Apple is a California corporation and used to high workers' compensation bills. But that's another story.

Or, maybe the cost of workers' compensation to Apple is like the proverbial pimple...

And apparently neither does Boeing see the cost of workers' compensation in California as an impediment to relocating about 375 engineers who work on modifications, such as performance upgrades, interior refinishing and passenger jet-to-freighter conversions, from Puget Sound, WA to Long Beach, CA.

Much to my amusement, Sen. Rodney Tom, a Democrat from Medina, WA and leader of the bipartisan Majority Coalition Caucus, issued a statement following Boeing’s announcement that said the inability of the Legislature to “control labor negotiations” is driving Boeing out of the state.

“Instead of taking action, we allow common sense workers’ compensation reform to languish – reform which would have saved both workers and the company money,” Tom said in his statement.

In the last Oregon Dept. of Labor study, Washington ranked 13th in workers' compensation costs, compared to California's third ranking. Apparently Tom didn't review the Oregon survey before engaging the propaganda machine.

Said former Washington state Rep. Brendan Williams, a Democrat who held office from 2005 to 2011, in an opinion-editorial published in the Everett Herald:

“Trying to understand why a multi-national corporation does things is not easy,” Williams wrote. “Washington’s workers’ compensation costs are considerably below California’s, which were the third-highest in the nation in 2012. We ranked 13th, with the employer burden even less given we are the nation’s only state requiring workers themselves to pay a share of premium costs.”

Everyone talks about a "broken system." Everyone talks about "reform." Everyone has an answer that generally means they want some special treatment (for example the NFL's professional athlete's jurisdiction restriction campaign across the nation).

What it all really comes down to is one simple fact that we, as professionals in the industry, need to come to grips with lest we drive ourselves crazy: workers' compensation is a political construct that uses legal fiction to obfuscate medical science to underwrite a financial proposition.

What this means is that workers' compensation only becomes an issue when some interest is seeking some special advantage, usually financial. Otherwise, in the grand scheme of things, it is just another expense that gets passed through to the ultimate consumer.

By the way, I'm not saying this is bad. It is just reality and without this reality none of us would have careers in workers' compensation.

Or, as I often tell my employees, "now, get back to work!" You know what to do...

Rx for Drug Problem: FL and CO Examples

Florida's crackdown on "pill mills", HB 7095, signed into law June 3, 2011, banning physicians from dispensing drugs on Schedules II and III of the DEA's controlled substances list, is being credited by state lawmakers with drastically reducing the purchase of the painkiller by physicians last year and reducing its overall purchase by pharmacies by 14%.

According to a report issued last week by the U.S. Drug Enforcement Administration (DEA), the number of doctors appearing on its national list of the top 100 U.S. physicians ranked by the volume of oxycodone they purchase dropped from 90 in 2010 to only 13 in 2011.

The 2011 list of oxycodone-purchasing doctors, published through the agency's Automation of Reports and Consolidated Orders System (ARCOS), showed 21 doctors listed in the top 100 now practice in Georgia, and another 11 practice in Tennessee.

The DEA said monthly purchases of oxycodone by Florida pharmacies increased slightly during January, February and March of 2011, while HB 7095 was being debated, and then began to drop significantly.

In addition to banning doctors from dispensing drugs on Schedules II and III of the DEA's controlled substances list, except as samples and during periods following surgeries, HB 7095 required doctors to resell their remaining inventories to wholesalers or turn them over to the Florida Department of Law Enforcement.

The law also required the Florida Department of Health to launch the state prescription drug-monitoring program (PDMP) last fall.

Pharmacies are required to supply the PDMP database with the names and other information of all persons receiving controlled substances, the dates the drugs were purchased, the quantities purchased, and information on prescribing physicians.

Georgia, Kentucky and Tennessee seem to be absorbing the business that has left Florida, according to the DEA report, demonstrating the difficulty of containing prescription drug dispensation issues within state borders.

In the meantime, Colorado is jumping on the bandwagon with new medical treatment guidelines for chronic pain and complex regional pain syndrome that include a threshold above which physicians should closely monitor opioid prescriptions and a dosage that should not be exceeded.

The updated guidelines, which take effect on Feb. 14, recommend providers screen injured workers for a history of substance abuse problems and obtain a consultation from a pain specialist before starting treatment with opioids. Providers should also have a patient sign a treatment contract indicating knowledge about the risks of addiction and that results of mandatory urine tests can be made available to employers.

Colorado's guidelines have similarity to Washington's move on prescription drugs, setting 120 milligrams of morphine equivalents per day as a dosage threshold.

The American Journal of Industrial Medicine in December said that dosage amounts in Washington, which peaked at 144.7 mg per day in 2002 had dropped to 113 mg in the third quarter of 2009 and 105 mg by the end of 2010. The study also found the number of opioid-related deaths among injured workers dropped 57.1% from a 15-year high of 35 in 2009 to 15 in 2010.

Each of these state moves is encouraging, but really are only band-aids attempting to quell symptoms rather than treat the underlying problem. I've said it before, "follow the money." There are forces at work behind prescription drug black marketing that are bigger than guidelines and physician bans, which is why the DEA found migration in such business to other states when Florida made it harder to sell.workers compensation, work comp, injured worker 

OH Rules Will Provide Good Comparison to WA Drug Program

Ohio is toying with a different approach to the issue of prescription drug abuse in workers' compensation.

The Ohio Bureau of Workers’ Compensation (BWC) will be reviewing at its January 27 meeting of directors a pharmacy “lock-in” rule, called the Coordinated Services Program, aimed at combating prescription drug abuse.

The program will allow BWC to require an injured worker to use a single pharmacy to dispense all non-emergency prescriptions that are reimbursed under the bureau’s prescription benefit plan.

House Bill 93, which took effect last May 20, requires that the bureau adopt such a program and rule by July 1, 2012. The legislation also provides that the bureau’s effort be developed in cooperation with the Department of Job and Family Services.

Under the proposed rule, the bureau could place an injured worker in the “lock-in” program based on the injured worker meeting one or more of the following criteria in a three-month time frame:

--Use of three or more different prescribers to obtain prescriptions of the same or comparable medications.

--Receipt of prescription drugs from more than two different pharmacies.

--Monthly receipt of three or more prescriptions, including refills for drugs identified as narcotic analgesics.

--Monthly receipt of more than two concurrent narcotic analgesics in the same therapeutic drug class.

--Monthly receipt of more than two narcotic analgesics in the same therapeutic drug class, more than one benzodiazepine, and more than one sedative-hypnotic.

The proposed rule also would allow the bureau to restrict an injured worker convicted of a drug offense to the use of a single prescribing physician, selected by the injured worker from bureau-certified physicians, in order to receive reimbursement from the agency for non-emergency prescriptions.

Ernie Boyd, executive director of the Ohio Pharmacists Association, told WorkCompCentral on Friday that he thinks the rule will help deter abuse of prescription drugs. Boyd said the only concern raised by pharmacists on the rule was that when an injured worker is required to select a single pharmacy, "it has to be the worker's choice."

Compare Ohio's plan with Washington's pharmaceutical controls.

Washington requires medical practitioners to perform a full evaluation to document a patient's health history for past treatment of pain and substance abuse problems. Practitioners must also review any available information about past prescriptions and current prescriptions through prescription drug monitoring programs before prescribing opioids.
Doctors are required to prepare a treatment plan, discuss the risks associated with opioids with patients and have the patient sign an agreement for treatment that outlines how the drugs should be taken. The contract can also include language saying the patient could be cut off from medication for violating the contract.

Other provisions in Washington's rules say whenever possible, a single prescriber and single pharmacy should dispense opioids, and that treating doctors should review the treatment plan and patient's progress at least every six months.

Doctors in Washington are required to seek a consultation for any prescription in excess of the equivalent of a 120 mg dose of orally administered morphine per day. Exceptions to the consultation requirement apply when a patient is being tapered off opioids, a patient requires only a temporary increase in dosage for acute pain, the doctor documents reasonable attempts to obtain a consultation with a pain management specialist or the doctor documents that the patient's pain and function is stable and the patient is on a non-escalating dosage of opioids.

Ohio is one of the few completely state-run systems. This allows the state to implement rules, such as the Coordinated Services Program, much more easily than a competitive open market state, because coordination of state agency services is more consolidated and streamlined.

Because Washington is also a state-run system, the effectiveness of the Coordinated Services Program can be measured directly against Washington's program for controlling prescription drugs providing the rest of the nation with valuable insight into better ways to manage this current source of abuse and concern. I assume at some point one of the workers' compensation research organizations will do this comparison and also compare against other states with, and without, adopted pharmaceutical control guidelines.workers compensation, work comp, injured worker 

WA, TX & FL; Same Issues, Different Solutions

The state of Washington is cited often these days as an example of what to do about the prescription drug and opioid epidemic that currently has the workers' compensation industry concerned.

According to the study, "Bending the Prescription Opioid Dosing and Mortality Curves: Impact of the Washington State Opioid Dosing Guideline," published in the Dec. 27, 2011, edition of the American Journal of Industrial Medicine, Washington's efforts are paying off with the gross total number of prescriptions for opioids down and a corresponding drop in prescription drug-related deaths.

The Washington Agency Medical Director's Group convened an advisory group in 2006 to develop dosing guidelines and in April 2007, the Medical Director's Group launched a web-based educational pilot program that included guidelines listing a "yellow-flag" warning for opioid dosages of 120 milligrams of morphine-equivalent doses per day. The guidelines recommended providers obtain a consultation with a pain-management specialist for patients with chronic non-cancer pain who were receiving dosages of opioids in excess of 120 mg per day before writing more prescriptions for the drugs at the same strength.

The number of prescriptions for Schedule II opioids increased 191% from 22,867 in 1996 to 66,544 in 2006, according to the study's authors, who include Dr. Gary Franklin, medical director for the Washington State Department of Labor and Industries, which runs the state's workers' compensation system. Prescription rates held steady from 2006 through 2008, before dropping to 54,484 in 2009 and 44,209 in 2010.

The number of prescriptions for Schedule III opioids increased from 76,935 in 1996 to 93,550 in 1999. The number of Schedule III prescriptions totaled 79,882 in 2008 and dropped to 63,808 in 2009 and 52,499 in 2010.

Expressed in terms of lost-time claims, there were 2,365 opioid prescriptions per lost-time claim in 1997 and 3,222 in 2002. That fell to 2,666 per 1,000 claims in 2009 and 2,245 in 2010.

The study found the number of deaths increased from 0 in 1996 to a 15-year high of 35 in 2009, corresponding to the increase in prescriptions and dosages. When prescriptions and dosages started dropping in 2009, the number of deaths also declined more than 50% to just 15 deaths in 2010.

Interest in Washington's results may migrate to the other side of the nation. The Workers Compensation Research Institute (WCRI) in its just released CompScope Benchmarks for Florida, 12th Edition, concludes that Florida worker's compensation costs are increasing across the board – driven largely by increases in payments for prescription drugs and outpatient hospital services.

WCRI said prescription costs per lost-time claim increased by 7% per year between October 2005 and March 2008. From 2006 through 2009, Florida ranked second – behind Louisiana – for prescription payments per lost-time claim. Florida payments averaged $500 per claim, while payments in Louisiana averaged $700.

The research group said physician-dispensing of repackaged drugs was the prime driver behind the pharmacy cost increases. WCRI reported earlier this year that physician dispensing accounted for 46% of all drug costs in the Florida workers' compensation system and noted physicians were paid more than pharmacies for most drugs.

WCRI's conclusions are supported independently by rate making agency NCCI.

In September of 2011 NCCI reported that more than half of the money spent on drugs dispensed to Florida's injured workers in 2009 went to doctors. Florida has gained the notorious reputation as the pill-mill of the South.

Former Gov. Charlie Crist vetoed legislation passed in 2010 that could have capped the price of drugs sold by repackagers at the average wholesale price (AWP) established by the drugs' original manufacturer plus a $4.18 dispensing fee.

The Florida Senate passed a similar bill last session. But the bill stalled in a House-Senate conference committee that passed a ban on physician dispensing of drugs on Schedules II and III of the U.S. Drug Enforcement Agency's controlled substances list.

But according to the NCCI report, nine of the 10 drugs dispensed by Florida doctors to injured workers in 2009 were not on the DEA's schedules. NCCI was concerned that the ban would have very little effect on workers' compensation cases.

In the middle of the country the Texas Association of Business (TAB) is organizing the Texas Alliance for Responsible Prescription Drug Use to combat what the association calls an “epidemic … sweeping across the state and nation.”

The Texas Prescription Program was created by the Legislature in 1982 to monitor Schedule II controlled substance prescriptions. Effective Sept. 1, 2008, the Texas Legislature expanded the program to include the monitoring of Schedule III through Schedule V controlled substance prescriptions. The schedules were established by the federal Drug Enforcement Administration and are based on the addictive nature of a drug and its use in medical treatment.

A report by the Texas Department of Insurance Workers’ Compensation Research and Evaluation Group released last fall on pharmacy costs in the Texas workers' compensation system shows prescription payments for 2010 exceeded $138 million, with long-standing claims of injured workers having significantly higher average costs than in more recent claims.

Payments for pharmacy services represented 13% of the medical costs in the Texas workers' compensation system for the year, a rate consistent with previous years, the researchers said. But so-called "legacy claims," which represent ongoing claims by injured workers (for injury years 1991 through 2005 in the study) had significantly higher average pharmacy costs than more recent claims. Many of those long-term claims involve potentially addictive painkillers, the report said.

The alliance could decide to take a look at prescribing practices as part of its work.

The take-away is that the issue of prescription drugs in workers' compensation is multi-faceted, ranging from education and dosing guidelines to outright bans on certain activities. The industry is tackling issues related to prescription drugs in an aggressive and dramatic fashion. I have no doubt that these efforts will pay off ... until the next crisis intervenes.workers compensation, work comp, injured worker